GILL -v- RAMAGE [2026] WADC 60

[2026] WADC 60 [2026] WADC 60 (JBS) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : GILL -v- RAMAGE [2026] WADC 60 CORAM : PRINCIPAL REGISTRAR MCGIVERN HEARD : 12 MAY 2026 DELIVERED : 26 JUNE 2026 FILE NO/S : CIV 1078 of 2024 BETWEEN : MICHELLE CLAIRE GILL Plaintiff AND DEEGAN FELIX RAMAGE Defendant Catchwords: Practice and procedure - Interlocutory application after entry for trial - Application made without leave - Oral application - Whether late application for leave ought to be entertained - Principles to be applied - Exercise of discretion - Proportionality - Turns on own facts Practice and procedure - Discovery - Application for further and better discovery - Financial records - Whether documents relevant to a matter in question - Where documents not dispositive - Whether prejudice from disclosure of confidential records - Turns on own facts -- 1 of 22 -- [2026] WADC 60 [2026] WADC 60 (JBS) Page 2 Legislation: District Court Rules 2005 (WA), r 38A Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 2 r 1, O 26 r 7 Result: Leave to apply given Application allowed Representation: Counsel: Plaintiff : Mr A Gunasekera Defendant : Mr P E Jarman Solicitors: Plaintiff : Peninsula Personal Injury Lawyers Defendant : Jarman Legal Case(s) referred to in decision(s): Allen v Merym Pty Ltd t/as Emco Building [No 2] [2022] WADC 45 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Chandler v Water Corporation [2004] WASC 95 Delgado v Bevchain Pty Ltd [2022] WADC 98 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 Maek Pty Ltd v Ibrahim [2022] WASC 285 Meyer v Solomon [2021] WASCA 168 Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 Pollard v Endale Pty Ltd [No 2] [2009] WADC 97 Roe v The State of Western Australia [2013] WASC 130 Rowe v Stoltze [2013] WASCA 92 Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 -- 2 of 22 -- [2026] WADC 60 [2026] WADC 60 (JBS) Page 3 The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 -- 3 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 4 PRINCIPAL REGISTRAR MCGIVERN: Introduction 1 This is an application for further and better discovery by the defendant in a personal injuries action which arises out of a motor vehicle accident (MVA) that occurred on 2 February 2023. 2 The plaintiff commenced the action by a writ of summons filed on 28 February 2024, and set out her allegations against the defendant in a statement of claim filed on 28 March 2024. 3 By his defence, filed on 5 June 2024, the defendant: (a) has admitted that his negligence caused the accident;1 but (b) does not admit that the plaintiff suffered injury and damage as a result of the accident as alleged and, in the alternative, pleads other causal factors.2 4 The plaintiff entered the action for trial on 7 July 2025. 5 The defendant brought the present application by chamber summons filed on 2 December 2025 (being five months after entry for trial). In essence, the defendant seeks, and the plaintiff resists, an order (Discovery Order) that: … the plaintiff give further and better discovery of complete copies of her bank account statements and transaction histories from 2 February 2023 to date [(requested documents)]. 6 The plaintiff resists the application, essentially on the grounds that the application: (a) has been brought, without leave, after the action has been entered for trial (leave objection); and (b) in any event, lacks merit (merit objection). 7 The application was heard on 12 May 2026. Both parties made submissions orally and in writing,3 and filed affidavits in support of their respective positions.4 1 Defence filed 5 June 2024 as amended on 15 September 2025 (Defence), par 3. 2 Defence, pars 4 - 12. -- 4 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 5 8 In dealing with the application, I will address the following issues: (a) in circumstances where the defendant did not seek leave to bring the application until the hearing, ought the question of leave be dealt with substantively; (b) if so, ought leave be given; and (c) if so, ought the court exercise its discretion in favour of making the Discovery Order, having regard to: (i) whether the requested documents are likely to exist and to relate to a matter in dispute; and (ii) the onerousness on the plaintiff of requiring their discovery? 9 For the reasons that follow, the application is allowed. Ought the defendant have leave to make the application? 10 Rule 38A of the District Court Rules 2005 (WA) (DCR) provides that: (1) After a case is entered for trial, no party, without the Court's leave, can apply … … (c) for particulars, interrogatories, discovery, inspection, or the disclosure or non-disclosure of expert evidence … (2) Subrule (1) does not limit the power of the judge at the trial to make orders for or in relation to any of the matters referred to in that subrule. (emphasis added) 11 At the hearing, there was no real contention between the parties5 that, given that the action was entered for trial on 7 July 2025: (a) DCR r 38A(1) applies; and (b) the defendant requires leave to bring the application. 3 Defendant's amended outline of submissions filed 6 May 2026 (defendant's written submissions) and amended further submissions also filed 6 May 2026 (defendant's further submissions); plaintiff's outline of submissions filed 7 May 2026 (plaintiff's written submissions). 4 The defendant filed the affidavit of Ivan Mihaljevic made on 2 December 2025. The plaintiff filed the affidavit of Jack Cameron McGuire made on 3 March 2026 (McGuire affidavit) and the affidavit of the plaintiff made on 7 March 2026 (Gill affidavit). 5 ts 7, ts 16. -- 5 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 6 Parties' positions 12 Responding to the plaintiff's leave objection, the defendant made an oral application for leave, supported by submissions6 to the effect that, although the application for the Discovery Order was made late: (a) the period of delay (being the time between the action being entered for trial and the application being made) was not long; (b) the application was made in response to matters arising from the medical evidence and reflects 'what's happened in terms of proceeding to pre-trials, and the differences between the parties'; and (c) in deciding whether leave should be grated, procedural time limits are secondary considerations to the 'the primary issues of doing justice between the parties'. 13 The plaintiff contended, in summary, that: (a) despite the plaintiff (by letter dated 28 October 2025) raising with the defendant the import of DCR r 38A, the defendant made the application without seeking or obtaining leave;7 (b) the defendant's application for leave was made late, by way of responsive submissions;8 (c) if leave to bring the application is granted, the plaintiff will suffer prejudice. Specifically, the plaintiff relies on her affidavit evidence to the effect that: (i) the defendant seeking to 'go through [her] bank statements' has caused her to feel a sense of sense of violation and intrusion into her private life, and a sense of having done something wrong; and (ii) the 'delay in [her] action progressing' because of 'the Defendant's desire to read [her] bank statements' has caused and continues to cause her stress and anxiety;9 and (d) in the circumstances, leave ought not be granted. 6 ts 16. 7 Plaintiff's written submissions, pars 7 - 10. 8 ts 16 - ts 17. 9 Gill affidavit, pars 20 - 23. The plaintiff's written submissions also refer to medical reports annexed to the McGuire affidavit, but I have dealt with those materials in relation to merit because they do not deal with the question delay. -- 6 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 7 Disposition 14 The rule at the heart of the leave objection, DCR r 38A, is to be construed and applied in context,10 and in accordance with the objectives of contemporary case management.11 In that regard, I observe that: (a) DCR r 38A: (i) does not create an absolute prohibition against interlocutory applications after an action is entered for trial - rather, it limits such applications to those brought with leave of the court; and (ii) is situated within pt 4 of the DCR, which deals with case management and is to be applied in that context;12 (b) the court is invested with a broad discretion to make case management directions,13 to extend or abridge the time allowed for a step under the rules,14 and to deal with irregularities arising by reason of non-compliance with the rules of court;15 and (c) the court's discretion is to be exercised: (i) judicially, in the interests of justice;16 and (ii) having regard to the 'overriding goal' of contemporary case management, being the elimination of any delay 'beyond that reasonably required for interlocutory activities essential to the fair and just determination' of the case.17 10 The accepted approach to construing written laws is well established and need not be repeated here - see for example: Meyer v Solomon [2021] WASCA 168 [76] - [80] and the authorities cited therein. 11 Rules of the Supreme Court 1971 (WA) (RSC), O 1 r 4B(2). Those objectives include the just determination of litigation, the avoidance of delay, maximising the efficient use of available judicial and administrative resources, and facilitating the timely disposal of business: RSC O 1 r 4A and r 4B(1). I observe that, except as provided in the DCR, the RSC apply to actions in this court: District Court of Western Australia Act 1969 (WA), s 87; DCR r 6. 12 RSC O 1 r 4B(2). 13 DCR r 24(1). As to case management, see: The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 (Hancock) [90] - [100]. 14 RSC O 3 r 5. 15 RSC O 2 r 1. 16 See for example: Hancock [164] - [166]. 17 RSC O 1 r 4A. -- 7 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 8 15 Consistent with those broad observations and principles, and with case law dealing with the grant of leave generally,18 I consider that the following (inexhaustive) considerations are relevant to the exercise of the court's discretion to grant leave under DCR r 38A: (a) the extent of the delay (from the time that the action was entered for trial to the time of making the application, including as to leave); (b) the explanation for the delay; (c) any prejudice to another party occasioned by the delay; and (d) the connection between the subject matter of the application and the matters that would need to be determined in the final trial of the action - that is, the degree to which the application is likely to assist in the 'fair and just determination' of the case at trial. 16 The relationship between those considerations is informed by proportionality, which lies at heart of case management and at the intersection of RSC O 1 r 4A and r 4B.19 17 Consistent with that consideration, the longer the delay giving rise to the need for leave, the stronger the countervailing considerations (including the reasons for the delay) ought to be before leave is granted.20 That is because: (a) in addition to any specific prejudice (which must be supported by evidence), delay itself may be regarded as prejudicial;21 and (b) the rule giving rise to the need for leave must have work to do (that is, the important purpose served by a time limit under the rules should not easily be ignored).22 Related to this, the need for leave should not be ignored, or the grant of leave be assumed, in an application. It must be squarely sought and addressed by the party who needs it.23 18 See for example: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) [111] - [114]; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [51]. 19 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 [6]; Roe v The State of Western Australia [2013] WASC 130 [10] - [11]. 20 Aon [103] - [106]; Hancock [94]. 21Aon [5], [111]; Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 (Hightime) [52]. 22 Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [17]. 23 Aon [103] - [106], [114]. -- 8 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 9 Should the question of leave be dealt with substantively? 18 In this case, the defendant neither sought nor addressed the issue of leave until the hearing of the application - and then only did so responsively. Quite apart from being contrary to the rules of court, such an approach runs the tandem risks of: (a) the responding party being taken by surprise, and this can weigh against leave being granted; and (b) the explanation being proffered for the delay being unsupported by affidavit evidence (which should usually accompany any formal application). 19 However, in this instance: (a) the defendant made an oral application for leave, and made submissions in support of that application, and the plaintiff (having squarely addressed the issue in both oral and written submissions) was not deprived of a reasonable opportunity to respond; and (b) the explanation proffered by the defendant - which was to the effect that the parties were engaging in efforts to resolve the issues between them - found adequate support from: (i) the court record (as to the dates of the pre-trial conferences); and (ii) the affidavit in support of the substantive application (as to the request for documents). 20 In those circumstances, I am satisfied that it is fair and efficient to deal substantively with the issue of leave despite the irregular manner in which it was sought. Ought leave be granted? 21 Further, I am satisfied that leave should, on balance, be granted. That is because: (a) the relevant 'delay' - being the time between the case being entered for trial and the filing of the application - was a little under five months; -- 9 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 10 (b) importantly, in the course of that period, the parties engaged in two pre-trial conferences (on 21 August 2025 and 29 October 2025 respectively) and indeed a further such conference was sought by consent, to be listed after this application; (c) in those circumstances, this is not a case where a party has simply delayed progressing the action. Rather, it appears that the parties were actively seeking to resolve the issues between them after the action was entered for trial; (d) exploring the prospects of a resolution without the need to bring an interlocutory application is conduct that is consistent with the overarching goal of contemporary case management. However, if negotiations stall and an interlocutory step is considered necessary, it is incumbent on the party taking that step to do so expeditiously. In this case, I am satisfied that the application was made in a timely fashion (within five weeks) after the second pre-trial conference; (e) further, as is also necessary, the defendant has conferred with the plaintiff in relation to the substance of the application and I am satisfied that the application was reasonably necessary to resolve the matter of the Discovery Order; (f) I consider, therefore, the 'delay' in making the application was not unreasonable in the circumstances and that there is an adequate explanation for it; (g) further, I do not consider the plaintiff to be so prejudiced by delay that leave should be refused. There is no doubt that the pressure of litigation is significant for parties and that all delay carries some burden. However, for the reasons above, I consider that the parties were actively engaged in settlement negotiations and that the action has not been unreasonably stalled by the application. The plaintiff's evidence regarding her response to the subject matter of the application is relevant to the merit objection, but does bear significantly on the issue of leave; and (h) finally, I am satisfied as to the connection between the application and the fair and just disposition of the trial, having regard to: -- 10 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 11 (i) the time at which the application has been made; (ii) the role of adequate discovery in 'promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice';24 and (iii) my conclusions below in relation to the merits of the application. Should the Discovery Order be made? Rules and principles 22 The powers of the court to order further discovery are broad, arising from at least three sources: RSC O 26 r 6, RSC O 26 r 7 and the court's inherent (or incidental)25 power to regulate its own proceedings.26 23 Whatever the source of power relied upon by the court, three requirements (threshold requirements) must be satisfied, namely that:27 (1) the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence; (2) those documents sought are relevant; and (3) those documents ought to have been disclosed. 24 Although a list of documents verified by affidavit is generally treated as conclusive as to its contents, that treatment falls away in the face of an assessment that a party may possess a document or class of documents which relate to matters in question which have not been discovered.28 24 Maek Pty Ltd v Ibrahim [2022] WASC 285 (Maek) [25]. 25 See for example: Rowe v Stoltze [2013] WASCA 92 [28]; Pollard v Endale Pty Ltd [No 2] [2009] WADC 97 [10]. 26 Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 (Perpetual) [29]; Delgado v Bevchain Pty Ltd [2022] WADC 98 (Delgado) [22]. 27 Perpetual [29]. 28 Chandler v Water Corporation [2004] WASC 95 [10] - [11]; Delgado [24]. -- 11 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 12 25 As to the latter threshold requirements, the following principles are instructive:29 51 First, the onus is on the party seeking further discovery to satisfy the court that the orders should be made. … 54 [W]hether a document is relevant to a matter in issue is to be determined by reference to the pleadings, but regard must also be had to the conduct and admissions of the parties and the nature of the action. … 55 [W]hether a document is relevant is, of course, a reference to documents which may either (a) advance a party's case or damage his or her opponent's case or (b) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case. … 56 [T]he power to order further discovery is discretionary. The court will only exercise its discretion to order further and better discovery, or discovery of specific documents, if it is necessary for the fair and just determination of the issues in contention and for the preparation of, or for the conduct of, the case at trial. 26 Also relevant to the exercise of the court's discretion is whether the production of the documents would be 'unnecessary or oppressive', as to which relevant factors include the value of the discovery to the party seeking it and the burden imposed on the party giving it.30 Parties' positions 27 The defendant's contentions in support of the application are, in summary, that: (a) the existence of the requested documents is not disputed, and there is no doubt that they are documents within the power and control of the plaintiff; 29 Allen v Merym Pty Ltd t/as Emco Building [No 2] [2022] WADC 45 [51] - [56]. 30 Perpetual [34] - [35] -- 12 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 13 (b) the extent of the plaintiff's accident-related residual disabilities and the impacts of those disabilities are matters of dispute on the pleadings and the requested documents are relevant to those matters. More specifically: (i) the plaintiff's financial outgoings 'reveal patterns of conduct relevant to her level of function'; and (ii) the relevant documents are also relevant to the plaintiff's reports of her incapacity, and to any assessment of her residual functional and earning capacity. (c) the confidential nature of the requested documents is outweighed by their relevance to the proceedings; and (d) the plaintiff does not assert that she will be burdened or prejudiced if the Discovery Order is made. 28 The plaintiff's merit objection is made broadly on the basis that: (a) the requested documents are not determinative of matters in dispute because: (i) the plaintiff has not pleaded or reported that she is completely incapacitated in any realm, but rather has complained of reduced capacities and of symptoms that impair her function; (ii) the requested documents do not extend to any period before the MVA, and so cannot demonstrate any change in her pre- and post-injury function because 'there is simply no baseline for comparison';31 and (iii) they 'cannot confirm, nor [sic] deny, the existence of symptoms'.32 (b) there is no reason to question the veracity of the plaintiff's reports of her symptoms arising from the various expert reports (including by reference surveillance footage of the plaintiff), because no real inconsistency arises on a fair reading of them; 31 Plaintiff's written submissions, pars 14 and 51. 32 Plaintiff's written submissions, pars 13 and 51. -- 13 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 14 (c) bank and financial statements are of limited relevance to assessing the impacts of injury on the plaintiff's social activity (as opposed to residual earning capacity); (d) the plaintiff has obtained expert medical opinion to the effect that bank statements have limited value in the assessment of the plaintiff's function; and (e) by reason of the matters in [13(c)] above, the plaintiff will be prejudiced if the Discovery Order is made. 29 The plaintiff relies on the affidavit evidence of the plaintiff, which is to the effect that: (a) she has several bank accounts, some in her own name and some jointly held with her husband; (b) she and her husband are 'not territorial about money' and she allows her husband to use her bank card for his own transactions; (c) in the period since the accident, she has engaged in paid and unpaid social and physical activities and has bought presents for family members; (d) upon learning that the defendant was seeking to go through her bank statements, she felt an immediate sense of violation; and (e) the delay in the action progressing 'because of this argument about bank statements' has caused, and continues to cause, her 'great stress such that [her] mood, appetite, sleep and general wellness have all been affected'.33 30 The plaintiff also points to supplementary reports obtained from the two medical practitioners, Dr Jansen and Dr Ozanne, who had previously assessed her.34 Each practitioner was asked to provide opinions, amongst other things, on: 33 Gill affidavit, par 23. 34 Those reports are annexed to the McGuire affidavit, as follows: JMC-14 supplementary report of Dr Neil Ozanne dated 5 February 2026 (Ozanne Supp Report); and JMC-16 supplementary report of Dr Brendan Jansen dated 6 January 2026 (Jansen Supp Report). -- 14 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 15 (a) the 'value of bank statements in a medico-legal context' - and each responded to the effect that they had limited value;35 (b) whether bank statements 'enable a medical practitioner to arrive at an accurate medical conclusion' - Dr Ozanne responded in the negative while Dr Jansen gave a more qualified response;36 (c) whether there were any 'aspects of relying on bank statements that are medically problematic' - and each responded in the affirmative;37 (d) in this case, the value of bank statements to a medical assessment of social or recreational activity - and each responded that they would be of limited value;38 and (e) in this case, whether there was a risk of a medical consequence from requiring the plaintiff to disclose the requested documents - and each responded to the effect that this could be a stressor and so aggravate the plaintiff's mental health symptoms.39 Disposition 31 As to the threshold requirements: (a) it is not contentious that the requested documents exist and are within the power, custody or control of the plaintiff; and (b) the real questions, then, are whether they are relevant and ought to be disclosed. Do the requested documents relate to a matter in dispute? 32 In her statement of claim, the plaintiff alleges that: (a) the MVA was caused by the defendant's negligence; (b) as the result of the MVA, she sustained various injuries (Injuries);40 35 Ozanne Supp Report, pages 2 - 3; Jansen Supp Report, page 2. 36 Ozanne Supp Report, page 3; Jansen Supp Report, page 2. 37 Ozanne Supp Report, page 3; Jansen Supp Report, page 2. 38 Ozanne Supp Report, page 3; Jansen Supp Report, page 2. 39 Ozanne Supp Report, page 4; Jansen Supp Report, page 2. 40 Statement of claim filed 28 March 2024 (SOC), par 9. -- 15 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 16 (c) as a result of the Injuries, the plaintiff has sustained permanent residual disabilities (Disabilities), as follows:41 a. permanent physical residual disabilities to the neck, left hip and right leg; and b. post-concussion syndrome; and c. permanent residual psychological residual disability. (d) the Disabilities have resulted in the plaintiff suffering the following sequelae:42 a. pain, stiffness and tenderness of the neck, lumbar spine, left hip and right leg b. limitation of movement in the neck, left hip and right leg; c. dizziness; d. nausea; e. light and noise sensitivity; f. increased fatigue; g. severe headaches; h. visual motion sensitivity; i. visual disturbances; j. difficulty with walking straight; k. facial paraesthesia; l. difficulty with concentration and memory recall; and m. psychological symptoms compromising of anxiety, mood changes, resulting in a diagnosis of post- traumatic stress disorder. (e) by reason of the above, the plaintiff has suffered and will continue to suffer various losses, which include:43 (i) loss of earning capacity; 41 SOC, par 12. 42 SOC, par 13. 43 SOC, pars 14 - 18. -- 16 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 17 (ii) the need for assistance by way of paid and gratuitous services; and (iii) the need for medical treatment. 33 The plaintiff has obtained medical reports which include assessments of her functional and earning capacity,44 on which she relies in her claim for damages45 including to the effect that she has incurred and continues to incur: (a) non-economic losses, which include that she: (i) suffers from sensitivity to noise and light; (ii) is easily overwhelmed by noise, light and crowds; (iii) avoids, and has severe difficulty with, shopping; (iv) has limited driving ability; (v) has a curtailed capacity to engage in pre-injury recreational activities of reformer pilates, golf, household tasks and gardening; (vi) no longer participates in dancing; and (vii) suffers from psychological symptoms including stress and anxiety;46 and (b) economic losses, which include that she: (i) has 'significant persistent cognitive impairment rendering her unfit for all work';47 and (ii) has required and continues to require medical treatment, and paid and gratuitous services, including in relation to 'domestic assistance, gardening assistance, transport and shopping'.48 44 Report of Dr Neill Ozanne dated 22 October 2024 and report of Dr Brendan Jansen dated 6 May 2024. 45 Schedule of damages filed 26 June 2025 (SOD). 46 SOD, par 2(c). 47 SOD, par 4. 48 SOD, par 7. -- 17 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 18 34 As previously noted, the defendant has admitted that the MVA resulted from his negligence,49 but: (a) does not admit the Injuries, Disabilities and their alleged sequelae and associated losses; and (b) puts on a positive defence as to causation. 35 The crux of the dispute between the parties - arising from the pleadings - is the cause, nature and extent of any injuries suffered by the plaintiff in the MVA, their sequelae, and the nature and extent of any resultant loss.50 I am satisfied, and I find, that the requested documents are relevant to those matters because: (a) I do not need to be satisfied or find that the bank statements are strictly necessary to the determination of the dispute. Rather, it is sufficient that they are reasonably necessary for the preparation for and conduct of the trial. In that regard, I observe that: (i) it is not necessary for the requested documents to be relevant to the entirety of an issue to be discoverable - a document or class of documents can shed light on an issue by illuminating one part of it; (ii) a document may be reasonably necessary for the preparation and conduct of a case if it calls for (or is likely to call for) an explanation or response from the producing party about a part of their case; and (iii) similarly, the discoverability of a document or class of documents does not depend on there being no other available evidence going to the same issue (or part thereof). (b) While there is weight to the plaintiff's submission that the requested documents are limited to the period from the date of the accident, and so do not shed light on any change from her pre-accident state, that does not render them irrelevant (for discovery purposes). That is because: 49 Defence, par 3. 50 Defence, pars 4 - 12. -- 18 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 19 (i) the plaintiff's case squarely raises the ongoing impacts of the alleged Injuries and Disabilities; (ii) the plaintiff's own affidavit evidence is to the effect that she pays for certain (albeit not all) social and recreational activities and materials, and this evidence supports the view that bank card and electronic transfer transactions will shed light on the number and frequency of such payments; (iii) further, it is to be expected that the plaintiff's transaction history over the relevant period will include shopping transactions; (iv) the frequency and nature of such payments and transactions are, in my view, likely to shed light on, or give rise to a legitimate line of enquiry (such as to call for an explanation or response from the plaintiff) about, the extent to which the plaintiff has engaged, since her accident, in certain of the social and domestic activities identified in her case as being limited by her Disabilities; (v) a finding as to the plaintiff's functional capacity over the three years since the accident does not deal with the whole question of causation or the assessment of damages, but is clearly an important plank in establishing the case regarding those issues; (vi) accordingly, documents capable of shedding light on the plaintiff's functional capacity in the period since the MVA are relevant to part of the causation enquiry and to the assessment of damages; and (vii) it follows that the requested documents relate to a matter in question in the proceedings, being the contest in the parties' cases regarding the ongoing sequelae and continuing losses that are said to arise from the MVA as they relate to causation and quantum. (c) That the plaintiff's affidavit evidence appears to peremptorily proffer explanations for, and responses to, the information that may be contained in her bank statements (including, for example, that her husband uses her bank card for his own -- 19 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 20 transactions) does not make them irrelevant. That evidence might go to the ultimate weight given to the requested documents if they are tendered at trial, but does not shield them from discovery. 36 I note that the defendant argues, in support of the application, that the plaintiff has given different accounts of her functional incapacity to the medical experts who have assessed her. The plaintiff objects that the defendant has misconstrued the experts' reports and there is no reason to doubt her veracity by reason of the way she has reported her symptoms to the medical experts. (a) Those submissions, in my view, go beyond what is needed to determine the question of whether the requested documents are discoverable. They are submissions more suited to the ultimate use of the documents at trial. (b) It is unnecessary, for the purpose of this application, for me to make findings about whether there is any inconsistency arising from the medical reports that gives rise to questions about the plaintiff's veracity, and I decline to do so. (c) It is sufficient for me to be satisfied, as I am, that the requested documents are relevant to the conduct of the case as pleaded. The content of the medical reports, as relied upon by the plaintiff and set out in [33], supports the application in that regard. 37 Finally, I do not consider the supplementary medical reports to be of assistance in the disposition of the application. That is because: (a) whether or not bank statements are of value to the medical assessment of the plaintiff is not instructive – the plaintiff's medical assessment is not the only matter that relates to the proceedings; (b) in the context of discovery, the question of whether a document or class of documents relates to a matter in the proceedings is one for the court, not for a medical practitioner; and (c) the questions to be addressed in determining the application are not the questions put to, or questions that are suitable to be answered by, the medical practitioners. -- 20 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 21 38 Since I have found the requested documents to relate to a matter or matters in dispute, it follows that, in the absence of other considerations that would outweigh their forensic relevance, they should be discovered. Do other considerations militate against discovery? 39 I consider that: (a) subject to there being a specified date range for the requested documents, production is not unduly onerous (indeed this was not even contended); and (b) as outlined above, there has not been unreasonable delay in the defendant seeking further discovery. 40 However, contrary to the defendant's contention at [27(d)] (which I reject), the plaintiff squarely argues that she will suffer prejudice if the Discovery Order is made. She has given evidence (including supportive medical evidence) that she has suffered a sense of violation and will likely suffer worsened anxiety if she is compelled to disclose her financial records. I accept that evidence. Nevertheless, I do not consider there to be such prejudice to the plaintiff as to outweigh the merits of the application because: (a) litigation is inherently stressful, and although the need to disclose all relevant information may well feel intrusive, each party is entitled to test another party's case, and the interests of justice support the discovery of all relevant material including to that end; and (b) the fact that documents are confidential or personal does not outweigh the merit of having the best evidence relevant to the issues between the parties available for production at trial.51 41 There are no sufficient countervailing considerations to outweigh the forensic relevance of the requested documents, such that I would decline to exercise my discretion to order their discovery. 51 See for example: Perpetual [37]. -- 21 of 22 -- [2026] WADC 60 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 60 (JBS) Page 22 Costs 42 As I have observed in these reasons, the defendant did not seek leave to bring the application until the hearing, and then only did so in response to the plaintiff's written submissions. While that did not result in leave being refused, it is nevertheless a feature of the proceeding that bears upon the question of costs. 43 That is because the plaintiff, in producing written submissions on the question of leave, could not respond to any application. There was, to use a colloquial expression, a need to 'shadow box' on the issue. 44 My preliminary view is that the above circumstance may warrant some departure from the usual position that costs follow the event. I will hear the parties on that issue and as to the degree of any such departure, if it is warranted. Conclusion 45 The application is allowed. I will hear the parties in relation to the precise orders that should follow, and in relation to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. AC Court Officer 26 JUNE 2026 -- 22 of 22 --